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2018 DIGILAW 84 (MEG)

Simon R. Marak v. State of Meghalaya

2018-11-27

MOHAMMAD YAQOOB MIR

body2018
JUDGMENT : 1. In connection with Tura P.S. Case No. 30 (04) of 2018 under Sections 21(b)(c)/33(c)/27(a)(b) of the NDPS Act, petitioner has been apprehended on 12.04.2018. The final report under Section 173 CrPC i.e., charge sheet has not been presented within the statutory period as a result whereof, the petitioner has filed an application for, grant of bail in default, before the court of the learned Special Judge (Sessions Judge), West Garo Hills, Tura. 2. Learned Special Judge vide order dated 12.10.2018 has not effectively considered the application and simply remanded the accused to judicial custody. 3. The petitioner has filed the instant petition stating that his indefeasible right to bail is being denied whimsically. Buttressing the submission would submit that in terms of Section 36A(4) of NDPS Act, the accused was entitled to be released for non-production of charge sheet within period of 180 days. His contention is that firstly, the substance recovered does not fall within the ambit of narcotic, even if falls, still in case of commercial quantity, maximum period for filing charge sheet is 180 days, that period has expired on 08.10.2018. The petitioner filed an application on 12.10.2018, neither that application has effectively been disposed of, nor till date the investigation has been completed, charge sheet (challan) as such has not been filed. Learned counsel for the petitioner has rightly placed reliance on the judgement rendered by the Hon’ble Apex Court in the case of Rakesh Kumar Paul v. State of Assam: (2017) 15 SCC 67 . Paragraph 46 is relevant to be quoted: “46. It was submitted that as of today, a charge-sheet having been filed against the petitioner, he is not entitled to “default bail” but must apply for regular bail – the “default bail” chapter being now closed. We cannot agree for the simple reason that we are concerned with the interregnum between 4-1-2017 and 24-1-2017 when no charge-sheet had been filed, during which period he had availed of his indefeasible right of “default bail”. It would have been another matter altogether if the petitioner had not applied for “default bail” for whatever reason during this interregnum. There could be a situation (however rare) where an accused is not prepared to be bailed out perhaps for his personal security since he or she might be facing some threat outside the correction home or for any other reason. There could be a situation (however rare) where an accused is not prepared to be bailed out perhaps for his personal security since he or she might be facing some threat outside the correction home or for any other reason. But then in such an event, the accused voluntarily gives up the indefeasible right for default bail and having forfeited that right the accused cannot, after the charge-sheet or challan has been filed, claim a resuscitation of the indefeasible right. But that is not the case insofar as the petitioner is concerned, since he did not give up his indefeasible right for “default bail” during the interregnum between 4-1-2017 and 24-1-2017 as is evident from the decision of the High Court rendered on 11-1-2017. On the contrary, he had availed for his right to “default bail” which could not have been defeated on 11-1-2017 and which we are today compelled to acknowledge and enforce.” 4. Learned AAG submits that it is a fact that till date, charge sheet has not been filed, statutory period is over, date of filing the application for grant of bail in default by the petitioner are correct. 5. Section 167 CrPC envisage that if the investigation is not completed and charge sheet not filed, then on the expiry of the period as specified therein which period as per Section 36A of NDPS Act is 180 days, the accused has to be released. Proviso to sub-section (4) of Section 36A of NDPS Act is relevant to be quoted: “(4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27-A or for offences involving commercial quantity the references in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974) thereof to “ninety days”, where they occur, shall be construed as reference to “one hundred and eighty days”: Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days.” 6. The language employed clearly suggests that if the investigation is not completed within the period of 180 days, the Special Court may extend the period up to one year on the report of the Public Prosecutor indicating the progress of investigation and the specific reasons for detention of the accused beyond the said period of 180 days. Learned Special Judge appear to have recorded the order very casually without adhering to the provision of law. When the Public Prosecutor has not file any application in tune with the proviso as quoted above, there could not be any reason for the learned Special Judge in not disposing of the application seeking bail in default whereas the application has been kept pending, it is very surprising. 7. Law at time may operate harshly but it has to be operated not to be denied by ipse dixit. Instant petition may not be maintained for the reason that an application seeking default bail is pending before the learned Special Judge. Learned Special Judge shall dispose of the said application in accordance with law and in accord with the observations made above preferably within a weeks’ time from the date copy of this order is received or delivered. 8. This petition shall stand disposed of accordingly. 9. Copy of the order be sent to the learned Special Judge for information and compliance.